(D.C. Civil Action No. 67-751) (D.C. Civil Action No. 67-964) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Van Dusen and Adams, Circuit Judges and Broderick, District Judge.
BRODERICK, District Judge.
This is an appeal from a judgment entered on May 4, 1971 in the United States District Court for the Western District of Pennsylvania after a jury returned a verdict based on unseaworthiness in favor of the plaintiffs.
The pertinent facts are that the plaintiffs, Michael T. Earles and Billy Leroy McNamer, were citizens of Kentucky and were employed on May 8, 1967, the date of their injuries, by the Walker Boat Yard, Inc. (hereinafter referred to as Walker) located in Paducah, Kentucky. Walker, among other things, serviced, stored and cleaned barges for companies which did business along the Ohio River. Plaintiff Earles had been employed full time by Walker for approximately one month prior to May 8, 1967 as a maintenance man to perform miscellaneous harbor work, such as moving and cleaning barges. His job requirements consisted in knowing how to push a broom or to use a hose, and his duties involved mainly work aboard either grain or salt barges which were either open or had roll-type covers on them. Plaintiff McNamer had worked for Walker for approximately eight months prior to the incident of May 8, 1967, and his duties included helping to clean open and roll-type barges containing salt and other freight, helping to stack covers, and helping as a deck hand aboard one of Walker's boats. Neither Earles' nor McNamer's duties prior to May 8, 1967 had included working inside of a chemical barge. Prior to May 8, 1967, the records of UBL (Union Barge Line) 903 show that this barge had been loaded with toluene*fn1 at Houston on April 5, 1967, had been discharged of that chemical on April 28, 1967, and was delivered empty to Walker on the morning of May 6, 1967.*fn2 Walker had been engaged by the defendant Union Barge Line Corporation (hereinafter referred to as Union Barge), a citizen of Pennsylvania, to perform a "contract to strip the barge of old cargo, cold water wash it, and and [sic] pump it clean."*fn3 For this purpose, UBL-903 was in the possession and control of Walker from May 6 to May 10, 1967. In the course of their duties on May 8, 1967, plaintiffs were instructed to go over and clean up a barge. Plaintiffs, and another Walker employee named Jimmy Woodford, were supplied with a flat, two pumps, some dip buckets and a fire hose and nozzle. The three men were taken by Walker's harbor boat, which towed a crane barge and the flat, out to Owens Island where UBL-903 was tied up. Owens Island is situated approximately a mile and a half from Walker's at the junction of the Ohio and Tennessee Rivers. Walker had a fleet of barges tied off Owens Island, and first two other barges had to be repositioned in order to gain access to UBL-903. The plaintiffs and Mr. Woodford then tied their flat to UBL-903 and boarded it with their equipment. UBL-903 was approximately 195 feet long, 35 feet wide and 11 feet deep and contained six chemical tanks, three tanks along each side. All of the hatch covers to these tanks were open when the three men arrived at the barge; there was no sign of any kind on the barge. The method of cleaning the tanks of old cargo consisted of having one man enter a tank through the hatch, descend a metal ladder approximately eleven feet long which was attached to the side of the tank, hose the sides and floor of the tank with water pumped from the Ohio, pump back out the wash water, dip the balance of the wash water out with a bucket after the pump had lost its prime, and then exit the tank. After the three men had taken turns in entering some of the tanks and doing the cleaning, their foreman Everett Livingston returned, looked in the tanks and told them to "rinse it down and then go down and dip the sump wells in the bottom, and we will be back to get you." One man would be in a tank for a total time of approximately twenty minutes, and there was a delay of approximately twenty minutes from the time one tank was finished being cleaned and the time they began to clean the next tank, which time was used to reposition the flat and equipment. After cleaning several tanks in this fashion, plaintiff Earles entered a tank to do the hosing, and Jimmy Woodford followed into the tank behind Earles to feed him the fire hose. Immediately after Earles and Woodford went into the tank, they breathed the poisonous fumes from the old cargo in that tank. Within twenty to thirty seconds after entering, they were overcome by the fumes, lost consciousness and fell on the floor of the tank with Earles' body lying in a puddle of the old chemical cargo. Plaintiff McNamer entered the tank to find out why the men were acting strangely, tried to rescue them and breathed the poisonous fumes. McNamer, however, was able to reach the ladder, climb out of the tank and flag down a passing boat before he, too, was overcome. Plaintiffs were treated for toluene exposure at a local hospital. They subsequently filed separate suits for their personal injuries, which suits were consolidated for the purposes of trial. Following a jury trial based upon diversity of citizenship on the issue of unseaworthiness of the vessel, verdicts were awarded each plaintiff and judgments entered in the amounts of $7,000.00 for plaintiff Earles and $5,500.00 for plaintiff McNamer. Union Barge now presents this appeal claiming that, as a matter of law, the evidence in the case does not support a finding of unseaworthiness on the ground that a shipowner's warranty of seaworthiness does not include the obligation to furnish a reasonably safe place for a seaman to perform his chores.
In maritime law, the locality of the tort traditionally governs the scope of maritime jurisdiction. While state law governs torts occurring on land,*fn4 and piers and docks are extensions of this land,*fn5 the gang plank serves generally as the dividing mark with maritime law being applied to those torts which occur on navigable waters,*fn6 when the wrong bears a significant relationship to traditional maritime activity,*fn7 or which occur on land but are caused by a ship on navigable water.*fn8 Navigable waters are those waters in the United States which afford a channel for useful commerce.*fn9 The Ohio River, used daily for the transportation to market of various products of this country, is a navigable water, and, therefore, maritime law governs a tort which occurs on the Ohio River. Maritime law, additionally, reaches "every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters. . . ."*fn10 In the instant case, not only were plaintiffs injured upon navigable waters, they were injured while aboard a barge resting on a navigable water. A vessel has been defined to include "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water."*fn11 A barge, although without motive power, has been held to be a vessel within admiralty jurisdiction*fn12 and within the meaning of the Longshoremen's and Harbor Workers' Compensation Act*fn13 since it is a means of transportation by water.*fn14 Therefore, maritime law governs the accident which plaintiffs suffered while aboard the barge on the Ohio River.
The defendant barge owner takes the position that the barge was not unseaworthy*fn15 and that this Court should so determine this as a matter of law. Defendant contends that the poisonous gas in the tank of the barge is a concomitant of chemical cargoes and that the very purpose of this tank barge was to carry such chemical cargoes.
A review of the history of the present day doctrine of the warranty of seaworthiness owed by a vessel or its owner to a seaman, or other person doing work on board the vessel of a type which traditionally was performed by a seaman, has been adequately set forth in other opinions.*fn16 In brief, early cases in the maritime law were concerned with the concept of unseaworthiness only as it concerned the right of a mariner to sue for his wages or as it related to the rules covering maritime insurance and the carriage of goods by sea. Under shipping articles, the law implied that the captain would furnish the mariner at the commencement of a voyage with a seaworthy ship, one which was "furnished with all the necessary and customary requisites for navigation."*fn17 Therefore, if a ship proved unseaworthy when she entered upon the voyage, the seamen were not bound by their contract, could refuse to continue the voyage, and could compel the master to return the ship to port.*fn18 The test of seaworthiness in the late nineteenth century was thus stated to be "whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport."*fn19 In this respect, the warranty was said to be absolute and non-dependent upon either the knowledge of its owner or the diligence in providing a seaworthy vessel. The fact that a vessel was staunch and fit did not matter; the character of a ship in determining unseaworthiness was measured by reference to the particular cargo to be transported.*fn20 In the early twentieth century, The Osceola*fn21 extended the concept of unseaworthiness to apply to personal injuries sustained by a mariner on board the vessel. From that time forward until today, the case law in regard to the unseaworthiness of a vessel has blossomed from hundreds of suits into certain accepted principles of law. First of all, unseaworthiness in maritime law is a condition*fn22 of the vessel which proximately causes injuries to a seaman or one performing a seaman's duties. Since the liability for unseaworthiness is predicated without regard to fault or the use of due care,*fn23 it is irrelevant to the shipowner's liability how that condition came into being,*fn24 whether there was complete control over the instrumentality causing the injury,*fn25 or whether the shipowner had actual or constructive knowledge of the condition.*fn26 Unseaworthiness has been found when consumable supplies caused the injury*fn27 and when the ship's crew*fn28 or gear*fn29 were unfit. It applies whether the condition is temporary*fn30 or permanent. But, where there is no defective condition of the equipment, appurtenances, crew, cargo or gear of the ship, then no liability for unseaworthiness can exist.*fn31 The doctrine of the warranty of seaworthiness, in essence, means that "things about a ship, whether the hull, the decks, the machinery, the tools furnished, the stowage, or the cargo containers, must be reasonably fir for the purpose for which they are to be used."*fn32
Since this Court is being asked by the appellant to determine as a matter of law that UBL-903 was not unseaworthy under the evidence presented in the court below, we have considered Albanese v. N.V. Nederl. Amerik Stoomv. Maats,*fn33 Jones v. Den Norske Amerikalinje A/S,*fn34 and Grigsby v. Coastal Marine Service of Texas, Inc.*fn35 Albanese concerned the injuries incurred by a longshoreman while he was working in the hold of defendant's vessel which contained poisonous carbon monoxide fumes. In the part of the case dealing with the claim between the longshoreman and the shipowner, which claim was unaffected by the subsequent history of the case, the Second Circuit stated that:
The jury had been instructed that the owner would be liable, with or without knowledge if the ship had become unseaworthy because of a dangerous condition created by noxious fumes in the hold. This was correct. . . .
This Circuit sustained Albanese's theory of unseaworthiness in Jones, wherein a longshoreman brought suit against a vessel owner for damages because of injuries sustained when he breathed carbon monoxide fumes while working in the hold.*fn37 Additionally, the Fifth Circuit in Grigsby affirmed a finding that a barge was unseaworthy where the plaintiff entered a tank of the barge without knowledge that the tank contained poisonous carbon monoxide fumes. It, therefore, becomes apparent, after an examination of Albanese, Jones and Grigsby and after an examination of the facts presented at the trial of this case, this Court cannot hold as a matter of law*fn38 that the UBL-903 was not unseaworthy.
In the instant case the evidence introduced at trial showed that the barge in question had carried toluene prior to its delivery to Walker, that plaintiffs were overcome after breathing poisonous fumes in a tank on the barge, and that they were subsequently treated medically for exposure to those fumes. Plaintiffs testified that they had been told only that they were to go over to Owens Island and clean up a barge. There were no signs on the barge to indicate what chemical the barge had been carrying, and the hatch covers to the tanks were lying open when the men arrived at the barge. Had it appeared at the trial that Walker knew it was being hired to remove poisonous fumes and that this knowledge was communicated to the plaintiffs who were employees of Walker, then plaintiffs might not have been entitled to rely upon a warranty of seaworthiness of the vessel as to that defect which they were being paid to remove.*fn39 As was stated by the Grigsby court, "There is no warranty that the vessel is seaworthy with respect to the unseaworthy condition which is directly responsible for bringing aboard the persons claiming the ...